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Suspected counterfeit or pirate goods can only be seized on arrival in the European Union when they are meant for sale there, Europe's highest court said in a judgment Thursday.
The judgment is based on two cases referred to the European Court of Justice (ECJ) from national courts based on cases involving Philips NV (PHG) and Nokia Corp. (NOK) relating to electric shavers and mobile phones respectively which were taken by authorities.
It relates to conditions under which fake or imitation goods coming from non-EU states may be detained by the customs authorities in the 27-country bloc.
"Where those goods are in customs warehousing or in transit in the EU, they can be classified as 'counterfeit' or 'pirated' goods if it is proven that they are intended to be put on sale in the EU," the ECJ said in a statement. However, "the court considers that goods in respect of which it is not proven, after substantive examination, that they are intended to be put on sale in the European Union cannot be classified as 'counterfeit goods' and 'pirated goods'."
However, if it can be shown the goods were intended for sale in the EU--for example because they were advertised for sale, or the companies involved are being evasive, then EU rules apply.
"There's no question they can be blocked when they're meant to be sold to people here," Geert Glas, Partner at the law firm Allen & Overy LLP told Dow Jones Newswires. "What is debateable is if a company in Korea ships something to a company in Canada via the port of Rotterdam."
Glas said the judgment is "a bit of a disappointment to some intellectual property owners" as it means suspected counterfeit goods can only be held if it can be shown they were intended for sale in Europe, or there is a lack of cooperation from the companies involved.
-By Frances Robinson, Dow Jones Newswires, +32 2 741 1486;